Impact of Sackett v. EPA Decision on Clean Water Act Compliance
On Independence Day, we celebrate the U.S.A. “from sea to shining sea.”
There’s a lot to love between those seas—and, of course, a lot more water. Water covers 7% of our country’s 3.8 million square-mile area, according to the US Geological Survey.
The Clean Water Act gives US EPA the responsibility and authority to create regulations, permit requirements, and more to protect the “Waters of the United States” from pollution.
For many years now, EPA has struggled to arrive at clear, understandable criteria for how to identify a Water of the United States or “WOTUS.” Attempts to re-define WOTUS during each of the two previous administrations were challenged in court and ultimately washed away.
Now, EPA will have to amend its latest WOTUS Final Rule, finalized in January 2023, following the Supreme Court’s decision in the case Sackett v. EPA. The case was a decade-plus long epic that began when US EPA ordered a property owner in Idaho to cease development on a private plot of land and “immediately undertake activities to restore the Site…”
Supreme Court Decision in Sackett v. EPA
EPA's basis for taking enforcement action was that the property contained wetlands protected by the Clean Water Act due to the proximity to a protected lake.
So when is a wetland a WOTUS? In the Sackett decision, Justice Alito gives us the court's take:
"To determine when a wetland is part of adjacent "waters of the United States,"..."waters" may be fairly read to include only wetlands that are "indistinguishable from waters of the United States." This occurs only when wetlands have "a continuous surface connection to bodies that are 'waters of the United States' in their own right, so that there is no clear demarcation between 'waters' and 'wetlands.'"
Lately, EPA has applied a "significant nexus" test to determine the applicability of the CWA to a specific body of water. The court writes that the significant nexus test resulted in coverage that was far too broad—with field agents bringing "nearly all waters and wetlands under the risk of CWA jurisdiction by engaging in fact-intensive "significant-nexus" determinations that turned on a lengthy list of hydrological and ecological factors."
EPA's Next Step to a Working WOTUS Rule
With Sackett decided, EPA now must amend its January 2023 Waters of the US rule to address the court's interpretation of the Clean Water Act's intent. In a statement released Monday, June 26, the agency announced that they intend to issue a Final Rule by September 1, 2023.
From the Boston Tea Party to Washington crossing the Delaware, to Tom Sawyer rafting on the Mississippi, to the surf-inspired music of the Beach Boys, water is not just a necessity for life—it's an integral part of our national history and imagination in the US.
To protect our national waters, limit pollution, and remain in compliance with the law, professionals in industry need a clear definition of "Waters of the United States" they can use to make decisions about compliance. With the long-running Sackett case now decided and EPA setting to work on an amended rule, it seems a definition of WOTUS that sticks might be within splashing distance.
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EH&S professionals who attend can identify the regulations that apply to their facility and locate key requirements to achieve compliance with the Clean Air and Clean Water Acts to EPCRA, TSCA, Superfund, and more. Prefer to train at your own pace? Try the interactive online course.
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